Foreign Workers and Navigating the Rough Seas of U.S. Immigration

By Attorneys Robert L. Reeves and Jeff L. Khurgel

Foreign Workers seeking employment in the United States are currently experiencing burdensome scrutiny on the part of some overreaching immigration officers, lengthy backlogs, and senseless allocation of numerically limited visas. Schedule A Registered Nurses and Physical Therapists are currently mired in a state of hopeful suspension, with some analysts predicting backlogs of 3-7 years for these desperately needed healthcare workers. Further, as detailed in our Newsletter several weeks ago, H-1B employers have recently received unannounced immigration inspection visits from government contractors, often not familiar with U.S. immigration laws themselves. Now, more than ever, it is vital that U.S. employers and their foreign workers are protected and represented by experienced counsel in their immigration processing.

In addition to enforcement-minded government forces, the immigration status of foreign workers in the U.S. is also shaped by market forces. U.S. immigration laws permit foreign workers to enter the U.S. to meet U.S. labor demands, and the legal status of these workers is tied to their employers. Whether the foreign worker is in the U.S. pursuant to an H-1B specialty occupation visa or is being petitioned by an employer for permanent residency, any changes in the employment relationship may affect the foreign worker’s immigration status.

All employers, from a start-up sole proprietorship to an established Fortune 500 company, can experience changes completely out of the control of the foreign worker which may affect that employee’s immigration status. Shifts in the economy and organizational changes may cause the employer to change their employment relationship with the foreign national. Whether the employer must shut down operations completely, lay off workers, or merge with another company, every foreign worker should know the effects these changes may have on their H-1B status or nascent application for adjustment of status.

If an employer ceases its operations or terminates the employee, an individual working in H-1B status is consequently no longer in a valid immigration status. In anticipation of termination or quitting, the foreign worker may transfer his H-1B status to a new employer by following certain rules. The H-1B worker may begin working for the qualifying new employer immediately upon the filing of a new petition by the new employer as long as the application for change of employment is non-frivolous and there has been no prior unauthorized employment on the part of the foreign worker.

Employer/petitioners may also sponsor foreign workers for permanent residency (“Green Card”). The route to a Green Card is a multi-step process, and may take anywhere from 6 months to 6 years or longer to complete, depending on the employment classification and visa availability. If the employer terminates the job offer at any time before the approval of permanent residence, the application process will most likely be stopped dead in its tracks. Similarly, if the employer goes out of business prior to the approval of the Green Card, the application process may no longer be possible.

There exists, however, a very important exception to this rule. If an employment-based application for adjustment of status has been filed and remains pending for 180 days or more, the employee may “port” to a new employer. Porting will only be permitted if the new position is in a same or similar occupational classification as the original job for which the foreign worker was petitioned. Porting in this circumstance does not require the new position be located in the same geographic area nor is the new employer required to prove they have the ability to pay the prevailing wage.

There are numerous circumstances in employment-based immigration relationships which may affect the foreign worker’s status in the U.S. In addition to those mentioned above, an employer may decide to relocate or change its name. The employer may also decide to change the foreign worker’s job duties, hours, or salary. Any one of these changes may have a significant impact on the worker’s H-1B status or Green Card application.

Foreign workers throughout history have made up a significant part of the backbone of U.S.’ workforce, and the present time is no different. Immigrant labor is seen in all sectors of our marketplace, and is vital to domestic growth. While fluctuations in the economy and in immigration policy make for challenging times, the employment-based immigration and temporary worker system is a long-entrenched part of our nation’s identity and that will not change. Indeed, in Fiscal Year 2008, the Department of Homeland Security granted 166,511 employment-based Green Cards according to the DHS 2008 Yearbook of Immigration Statistics. This is an increase from the 56,678 Green Cards allotted for employment-based immigrants in 1999. While processing remains complicated, there clearly exists a light at the end of the tunnel. Employers and their foreign workers are reminded that experienced counsel should be retained to navigate the employment-based immigration process.